In two recent posts, I have suggested that the Fourteenth Amendment of the Constitution does protect economic liberty against the states but in a modest way. Legislation, like a state granted monopoly, that merely protects one group of people over another is illegal. But states are free to pass inefficient legislation that trenches on liberty so long as it has a bona fide police power rationale, like health and safety. The Fourteenth Amendment does not enact cost-benefit analysis.
Thus, the direct results for economic liberty of hewing to a more originalist understanding of the Fourteenth Amendment will be modest, because much legislation is inefficient, but not simply protectionist. But there are other means of achieving the goals sought by a more stringent judicial review of economic legislation, most importantly more vigorous use of the federal antitrust law and the establishment of state and local agencies that impose cost-benefit analysis on regulations.
In North Carolina State Board of Dental Examiners v. FTC, The Supreme Court recently made clear that agencies that are composed of a majority of industry representatives are subject to antitrust scrutiny, unless they are “actively supervised by the state.”